RE IP; EX PARTE IP [2005] WASC 219

Reported Decision:	(2005) 30 WAR 504
Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2005] WASC 219
Case No:	CIV:1453/2005	Heard:	2 SEPTEMBER 2005
Coram:	HASLUCK J	Delivered:	2/09/05
No of pages:	14	Judgment Part:	1 of 1
Result:	Application dismissed
Category:	A
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Parties:	IP
Catchwords:	Criminal procedure Certiorari Application to quash proceedings on indictment Consequence of alleged failure to disclose prior to committal Whether committal invalid Application for order nisi refused
Legislation:	Justice Act 1902 (WA), s 103
Case References:	Barney v Parole Board of Western Australia (2000) 117 A Crim R 514 Re Grinter; Ex Parte Hall [2004] WASCA 79 Re Kennedy Ex Parte Crozier & Ors [2002] WASC 190 Re Lawrence; Ex Parte Moltoni & Anor, unreported; SCt of WA; Library No 980010; 16 January 1998 Nil

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION : RE IP; EX PARTE IP [2005] WASC 219 CORAM : HASLUCK J HEARD : 2 SEPTEMBER 2005 DELIVERED : 2 SEPTEMBER 2005 FILE NO/S : CIV 1453 of 2005 MATTER : Application for a Writ of Certiorari against Stipendiary Magistrate Woods executing the powers of a Justice under s 103 of the Justices Act 1902 (WA) EX PARTE

Applicant

Catchwords:

Criminal procedure - Certiorari - Application to quash proceedings on indictment - Consequence of alleged failure to disclose prior to committal - Whether committal invalid - Application for order nisi refused

Legislation:

Justice Act 1902 (WA), s 103

Result:

Application dismissed

(Page 2)

Category: A

Representation:

Counsel:

Applicant : Mr L A Tsaknis

Amicus Curiae

: Mr N C Monahan

Solicitors:

Applicant : Kott Gunning

Amicus Curiae

: State Solicitor

Case(s) referred to in judgment(s):

Barney v Parole Board of Western Australia (2000) 117 A Crim R 514
Re Grinter; Ex Parte Hall [2004] WASCA 79
Re Kennedy; Ex Parte Crozier & Ors [2002] WASC 190
Re Lawrence; Ex Parte Moltoni & Anor, unreported; SCt of WA; Library No 980010; 16 January 1998

Case(s) also cited:

Nil

(Page 3)

HASLUCK J

Introduction

1 The applicant has applied for relief by way of certiorari in respect of certain proceedings presently before this Court. There is a forthcoming status conference concerning the indictment in question. I am therefore obliged to deal with this application expeditiously, although the point of law raised is of some complexity.

The application

2 The application for certiorari is brought pursuant to O 56 of the Rules of the Supreme Court. The terms of the application are reflected in a minute of proposed amended originating motion for a writ of certiorari against the respondent dated 1 September 2005.

3 The application is directed to the respondent, Stipendiary Magistrate Woods, being a Magistrate of the Court of Petty Sessions of Western Australia. If the application is allowed, she will be required to show cause before the Court of Appeal at this Honourable Court at the first sitting to be held at the expiration of eight…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Re IP; [2005] WASC 219
Case: [2005] WASC 219
Decision Date

CaseChat Overview and Summary

The case of Re IP; Ex Parte IP [2005] WASC 219 was heard by Hasluck J in the Supreme Court of Western Australia. The applicant sought relief by way of a writ of certiorari to quash the proceedings on indictment on the basis of an alleged failure to disclose prior to committal. The key legal issue was the consequence of an alleged non-compliance with the requirements of s 103 of the Justices Act 1902 (WA) concerning disclosure of the prosecution case prior to committal. Hasluck J found that the consequence of non-compliance with s 103 was not an invalidity of the committal but rather the exercise of a discretion to adjourn or discharge the defendant under s 103(7). The court concluded that the applicant had not demonstrated an arguable case justifying the making of an order nisi for certiorari. The application for a writ of certiorari was dismissed.

Orders